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Border Patrol use of force policy scrutinized

PHOENIX (AP) — Government investigators are reviewing U.S. Border Patrol policies on use of lethal force amid a spate of deadly shootings along the border in recent years, including the killing last week of a teenager who agents said was throwing rocks at them from across a fence in Mexico.

Since 2010, at least 18 people have been killed by Border Patrol agents, eight in instances where federal authorities said they were being attacked by rock-throwers, a common occurrence along the Mexican border, said Vicki Gaubeca, director of the ACLU's Regional Center for Border Rights, in Las Cruces, N.M.

The probe by the Department of Homeland Security's Office of Inspector General involves a review of accusations of brutality and excessive force as it works to determine whether reforms have been implemented.

The review, briefly referenced in a 100-page report released this month, was launched after 16 members of Congress expressed concern over the 2010 death of an unarmed Mexican migrant in San Diego. They asked the Department of Homeland Security to determine whether the incident is "emblematic of a broader cultural problem" within the agency.

"It is ongoing," Arlen Morales, a spokeswoman for the Inspector General's Office, said Thursday.

She declined to comment on details of the investigation or when it began, but noted it could take up to a year to complete.

U.S. Customs and Border Protection also would not comment, noting only that it fully cooperates with the Inspector General's Office, agency spokesman Michael Friel said.

In the San Diego shooting, Anastasio Hernandez, 42, died in May 2010 after being shot with a stun gun by a Border Patrol agent at the San Ysidro port of entry. An autopsy found he died of a heart attack, with a heart condition and methamphetamine listed as contributing factors.

The coroner's report, citing a San Diego police detective, said Hernandez was agitated and confrontational after he was detained by agents while crossing the border illegally and became suddenly violent when his handcuffs were removed.

Eugene Iredale, an attorney for the man's family, told The Associated Press in July the U.S. Justice Department's civil rights division was presenting evidence to a grand jury in the case amid signs that prosecutors were considering criminal charges.

The Justice Department has declined to comment, only noting the case remains under investigation.

It is extremely rare for U.S. border authorities to face criminal charges for deaths or injuries to migrants. In April, federal prosecutors said there was insufficient evidence to pursue charges against a Border Patrol agent in the 2010 shooting death of a 15-year-old Mexican in Texas.

In 2008, a case was dismissed against a Border Patrol agent facing murder charges after hung juries led to two mistrials. Witnesses testified the agent shot a man without provocation after he crossed the border illegally near Naco, Ariz., but defense attorneys contended it was self-defense after the Mexican man tried to hit the agent with a rock.

The Border Patrol considers the use of deadly force against rock-throwers generally acceptable, noting the projectiles can be deadly, but critics of the practice claim it's an unfair fight.

"It just seems like it's over the top to use lethal force in response to rock throwers," Gaubeca said.

Kent Lundgren, a former agent and now chairman of the National Association of Former Border Patrol Officers, countered that rocks can indeed be deadly.

"A rock thrown real slow will kill you just as dead as a bullet," Lundgren said, recounting a time in the early 1970s when he was hit in the head while patrolling the border near El Paso, Texas.

"It put me on my knees," he said. "Had that rock caught me in the temple, it would have been lethal, I have no doubt."

Mexican officials, meanwhile, have repeatedly decried the use of lethal force in such cases but the denouncements have brought little change among increasing fatalities.

Multiple wrongful death lawsuits have been filed by Mexican families and in at least one case, a Border Patrol agent was charged with murder in Mexico. The agent has not been extradited.

In the most recent case last week, Mexican authorities say a 16-year-old boy was killed by an agent who shot through a border fence in Nogales, Ariz. The Border Patrol acknowledged the agent was responding to rock-throwing but has only said "it appeared someone had been hit." Investigations are ongoing on both sides of the border.

A Mexican official with direct knowledge of the investigation told the AP the boy had been shot multiple times in the back. The person was not yet authorized to discuss details of the case and spoke on condition of anonymity.